IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. OF 2018

In the matter of Article 226 of the

Constitution of India

And

In the matter of Articles 14, 19 and 21

of the Constitution of India

And

In the matter of the Coastal Regulation

Zone Notification, 2011

And

In the matter of Exclusive Economic

Zone and Other Maritime Zones Act,

1976

And

In the matter of disastrous effect the

proposed construction of Chhatrapati

Shivaji Memorial Statue off the

Arabian Sea will have on the

livelihood of fishermen

And

In the matter of violation of the EIA

Notification dated 14.09.2006 issued by

the Ministry of Environment, Forests &

Climate Change issued under the

 provisions of the Environment

(Protection) Act, 1986

And

In the matter of the impugned

Environment and CRZ Clearance

dated 23rd February 2015 granted to

the Public Works Department,

Mumbai (State of Maharashtra) for the

construction of a statue and memorial

along with allied facilities in memory

of Chhatrapati Shivaji Maharaj in the

Arabian Sea off the coast of Marine

Drive, Mumbai

1. Laxmi Ramaji Gaikwad,

Prajapur Pada, Aarey Colony,

Unit No. 19, G-Vikhroli Link Road,

Goregaon (East), Mumbai – 400 065

2. Laxmi Padavi,

Prajapur Pada, Aarey Colony,

Unit No. 19, G-Vikhroli Link Road,

Goregaon (East), Mumbai – 400 065

3. Pilya Padavi,

Prajapur Pada, Aarey Colony,

Unit No. 19, G-Vikhroli Link Road,

 Goregaon (East), Mumbai – 400 065

4. Asha Bhoye,

Prajapur Pada, Aarey Colony,

Unit No. 19, G-Vikhroli Link Road,

Goregaon (East), Mumbai – 400 065

5. Kisan Buddhya Bhoye

Prajapur Pada, Aarey Colony,

Unit No. 19, G-Vikhroli Link Road,

Goregaon (East), Mumbai – 400 065

Versus

1. Ministry of Tribal Affairs,

through its Secretary,

and having his/her office at

2. Tribal Development Department,

State of Maharashtra, through its Secretary,

and having his/her office at

First Floor, Mantralaya (Extension Building),

Madam Cama Road, Mumbai – 400 032

3. Housing Department

State of Maharashtra, through its Secretary,

and having his/her office at

 Mantralaya, Madam Cama Road,

Mumbai – 400 032

4. Revenue Department,

State of Maharashtra, through its Secretary,

and having his/her office at

Mantralaya, Madam Cama Road,

Mumbai – 400 032

5. Urban Development Department

State of Maharashtra, through its Secretary,

and having his/her office at

Mantralaya, Madam Cama Road,

Mumbai – 400 032

6. Social Justice and Special Assistance Department,

State of Maharashtra, through its Secretary,

and having his/her office at

Mantralaya, Madam Cama Road,

Mumbai – 400 032

7. Urban Development Department,

State of Maharashtra, through its Secretary,

and having his/her office at

Mantralaya, Madam Cama Road,

Mumbai – 400 032

 8. Mumbai Metropolitan Region Development Authority,

through its Chairman and having his/her office at

M.M.R.D.A. Office Building,

Bandra-Kurla Complex, C-14 & 15,

E Block Bandra (East), Mumbai - 400 051

9. Mumbai Metro Rail Corporation Limited,

through its Managing Director,

having his/her office at

NaMTTRI Building, Plot No. R-13, ‘E’- Block,

Bandra Kurla Complex, Bandra (East),

Mumbai 400051.

10. Mumbai Rail Vikas Corporation Limited,

through its Managing Director,

having his/her office at

2nd floor, Churchgate Station Building,

Mumbai - 400020

11. Collector, Mumbai Suburban District

having his office at

Collector Office, Mumbai Suburban District,

10th Floor, Administrative Building,

Near Chetna College, Government Colony,

Bandra (East), Mumbai - 400 051

12. Municipal Corporation of Greater Mumbai,

 through the Municipal Commissioner,

having his/her office at the BMC headquarters,

Mahapalika Marg, Mumbai – 400 001

13. CEO, Aarey Colony

TO,

THE HON’BLE CHIEF JUSTICE

AND OTHER PUISNE JUDGES OF

THIS HON’BLE COURT

THE HUMBLE PETITION OF THE

PETITIONERS ABOVENAMED

MOST RESPECTFULLY SHEWETH:

1. The Petitioners are Indian citizens who belong from the indigenous Kokna

Tribal community, which is recognized as a Scheduled Tribe under The

Constitution (Scheduled Tribe) Order, 1950 at Sr. No. 25 and have been

residing through generations at the Prajapur Adivasi Pada/hamlet of

Aarey Colony since pre-independence era. The Petitioners have been

actively earning their livelihood by cultivating rice crops and vegetables

in adivasi lands for decades. Petitioner Nos. 1 to 2 have been residing in

the Prajapur Pada since the year 1952. Petitioner Nos. 4 and 5 are residing

in Prajapur Pada since _______ . Caste certificates of all Petitioners are

annexed and marked hereto as EXHIBIT – A.

2. Array of Respondents
3. Petitioners herein seek to challenge the execution of the Mumbai Metro –

III Corridor for Colaba – Bandra – SEEPZ (hereinafter referred as “the

said project”) in tribal areas of Prajapur Pada, Aarey Colony wherein the

entire rehabilitation and resettlement process undertaken by Respondent

No. 9 herein, the Mumbai Metro Rail Corporation Ltd., is misconceived,

illegal and without following any due process of law in as much as basic

fundamental rights of Petitioners from the adivasi tribal community,

including their right to life and livelihood under Articles 14, 19 and 21 of

the Constitution of India, 1950 are being violated for having such tribal

hamlets either been demolished or are under the threat of being

demolished by state authorities in complete disregard to the rehabilitation

policy of Indigenous communities under the existing laws.

FACTS IN BRIEF

4. Kokna/Kukna community is an adivasi tribal community that has been

closely related to Konkani people with its origin from Konkan Patti in

Thane District of Maharashtra. Majority of the community members are

traditional agriculturists and are involved in the business of cultivation of

rice crops/paddies, fruits and vegetables for subsistence. The presence of

Kokna tribal community in Village Goregaon dates back to pre-

independence era in the forest areas, which is today known as Aarey

Colony. Kukna tribal community had also migrated to the States of

Gujarat, Karnataka and Dadra-Nagar Haveli from Thane District and the

same has been recorded by the Tribal Research and Training Institute,

Tribal Development Department, Government of Gujarat alongwith

details such as the dress, dialect, religion, occupation, social customs,

among others. Annexed and marked hereto as EXHIBIT – B is the

 document giving brief details on Kukna community prepared by the

Tribal Research and Training Institute, Tribal Development Department,

Government of Gujarat.

5. The Kokna community has also been recorded as a community of

cultivators, with the greatest part of their work involving hands. The same

has been recorded in a survey titled as “Landmarks in Indian

Anthropology: The Tribes and Castes of Bombay” that was surveyed and

published in 1922. Annexed and marked hereto as EXHIBIT – C is the

extract of “Landmarks in Indian Anthropology: The Tribes and Castes of

Bombay, 1922” showing details of the Kokna (written as Konknas)

community.

6. Lands of Aarey Colony and Prajapur Pada are tribal lands as the land has

been in possession of the tribals for decades, predating the transfer of the

land to the Government/Office of Aarey Colony. Aarey Colony comprises

of 27 adivasi padas/hamlets as on today. Annexed and marked hereto as

EXHIBIT – D is the list of all 27 adivasi padas/tribal hamlets including

Prajapur Pada located inside Aarey Colony. It is submitted that adivasi

padas/tribal hamlets in Aarey Colony have traditionally cultivated lands

for decades with a symbiotic relationship with the forest and forest

produce in Aarey Colony. That the area adjoining to Prajapur Pada is

called ‘Sariput Nagar’ and is inhabited by informal housing settlements.

Annexed and marked hereto as EXHIBIT – is the satellite imagery with

markings showing the location of Prajapur Pada and Sariput Nagar.

7. That Petitioner No. 1 is in possession of land admeasuring 20 Gunthas

(about 0.5 acres) and the State of Maharashtra through Respondent No.

(CEO Aarey) has issued land receipts for cultivation of vegetables/rice

paddies to Petitioner No. 1 in the following manner:

Date License Sr. No. Amount Paid by Petitioner No. 1

Annexed and marked hereto as EXHIBIT – are copies of land

records

8. That Petitioner No. is in possession of land admeasuring 20 Gunthas

(about 0.5 acres) and that the State of Maharashtra through Respondent

No. (CEO Aarey) has issued land receipts for cultivation to Petitioner No.

2 in the following manner:

Entry No. License Sr. No. Amount Paid by Petitioner

9. That Petitioner No. is in possession of land admeasuring 20 Gunthas

(about 0.5 acres) and that the State of Maharashtra through Respondent

No. (CEO Aarey) has issued land receipts for cultivation to Petitioner No.

3 in the following manner:

Date License Sr. No. Amount Paid by Petitioner No. 1

10.That Petitioner No. is in possession of land admeasuring 20 Gunthas

(about 0.5 acres) and that the State of Maharashtra through Respondent

No. (CEO Aarey) has issued land receipts for cultivation to Petitioner No.

4 in the following manner:

Entry No. Door License No. Amount Paid by

Petitioner

11.That the State of Maharashtra through Respondent No. (CEO Aarey) has

issued land receipts for cultivation to Petitioner No. 5 in the following

manner:

Entry No. Door License No. Amount Paid by

Petitioner

12.That the State of Maharashtra through Respondent No. (CEO Aarey) has

issued land receipts for cultivation to Petitioner No. 6 in the following

manner:
 Entry No. Door License No. Amount Paid by

Petitioner

13.It is submitted that suddenly in the year 2000, the Aarey Administration

Department refused to issue land receipts to Petitioners under the guise

that Aarey Administration Department has sent a proposal to the

Government to revise the rates and therefore, the cultivation by the

Adivasis was stopped till new directions were received. No new land

receipts have been issued to Petitioners since 2000.

14.That on 12.12.2000, State of Maharashtra, through Respondent Nos. 3 and

6 (then known as Department of Housing and Special Assistance), issued

a policy for resettlement and rehabilitation of persons affected by Mumbai

Urban Transport Project (MUTP). The policy provides for the eligibility

of Project Affected Persons (PAPs), selection of Resettlement Site,

Monitory Support, Planning and Implementation procedure, preparation

of Resettlement Action Plan (RAP), redressals and other institutional

arrangements. That Clause 14 of the said policy provides for planning and

implementation procedure wherein a boxed noting for Clause 14 (b)

states:

“In case indigenous people are affected by MUTP, a separate

Indigenous People Development Plan (IPDP) will be prepared

 alongwith the RAP in accordance with World Bank’s Operational

Directive 4.20”

Annexed and marked hereto as EXHIBIT – E is the MUTP’s

Resettlement and Rehabilitation Policy.

15.Petitioners submit that the World Bank Operational Manual, 1991

provides for World Bank’s Operational Directive (OD) 4.20 on

“Indigenous Peoples”. At Clause 3, the said Operational Directive (OD)

describes ‘indigenous people’ to be social groups with a social and

cultural identity distinct from the dominant society that makes them

vulnerable to being disadvantaged in the development process. At Clause

5, the OD further states that “Indigenous people are commonly amongst

the poorest segments of a population and engage in economic activities

that range from shifting agriculture in or near forests to wage labor or

even small-scale market oriented activities.”

16.It is further submitted that the World Bank’s Operational Directive 4.20

provides for framing of Indigenous Peoples Development Plan

(hereinafter referred as “IPDP”). Clause 15 provides for the following

elements to be an important component of IPDP:

a) Legal Framework,

b) Baseline Data,

c) Land Tenure,

d) Strategy for Local Participation,

e) Technical Identification of Development or Mitigation activities,

f) Institutional Capacity,
 g) Implementation Schedule and

h) Cost Estimates and Financing Plan

Annexed and marked hereto as EXHIBIT – F is the World Bank’s

Operational Directive 4.20 on framing of Indigenous People Development

Plan (IPDP). That no such IPDP has been prepared by Respondent Nos. 8

and 9 for the affected Prajapur Pada in Metro Corridor 3 Project.

17.It is submitted that Respondent No. (Urban Development Department) has

issued a GR dated 03.03.2014 granting approval for the Mumbai Metro 3

corridor (Colaba-Bandra-SEEPZ). At Item no. 10, the GR approves

transfer of 30 ha. land at the Aarey Colony to MMRDA (Respondent No.

herein) for a nominal rate on rental basis for the Metro car shed. There are

no specific details in terms of Survey Nos and Village names with respect

to 30 ha. land been provided in the GR, only except the information that

lands adjoining the Aarey Milk Colony Jogeshwari-Vikhroli Road are

transferred. Further at Item No. 14 of the said GR, it is stated that that

Government has approved to make use of the place of Metro Car shed for

commercial use and the right of making commercial development of the

said lands will rest with Respondent No. (MMRCL). At Item No. 15,

the said GR states that the approval of Metro Corridor - 3 is being granted

to implement the rehabilitation and resettlement of the Project Affected

Persons (hereinafter referred as “PAP”) under Metro 3 Corridor Project

under MUTP R&R policy. Annexed and marked hereto as EXHIBIT – G

is the said GR dated 03.03.2014.

18.It is submitted that on perusal of Item Nos. 10, 14 and 15 of the said GR,

it is clear that without revealing on which lands the metro car depot was to

be constructed, the intention of Respondent Nos. __ and ___ was to

construct a car shed at a small parcel of land and use the rest of the land

for the purpose of commercial development. For such commercial

development, rehabilitation and resettlement of the PAP was to be carried

out only in terms of MUTP’s R & R Policy.

19.It is submitted that sometime in May, 2013, a presence of officials

marking and identifying few areas in the tribal lands of Prajapur Pada was

noticed and on enquiry by tribals, one of the officials informed that these

tribal lands were to be used for implementation of the Mumbai Metro

Corridor. It was also informed that a baseline survey shall be carried out

soon for providing a house to house rehabilitation scheme. In November,

2013, few officials from a consultancy firm appointed by Respondent No.

9 visited the Prajapur Pada for carrying out the survey, who faced

complete opposition from the tribal community. After the tribals

expressed a difference of opinion, the officials threatened tribals of

Prajapur Pada including the Petitioners herein that the said lands are

owned by the government and eviction/demolition of all tribal

members/houses shall be undertaken by the government without

providing any kind of resettlement or alternative accommodation.

20.That under this threat of eviction/demolition with no alternate

accommodation/livelihood to be provided, the tribal community of

Prajapur Pada were made fearful of Respondent No. (MMRDA).

Subsequently, a baseline survey was carried out by the agency of

 Respondent No. MMRDA showing the location, name of the household

head, sex, tenure status, caste and family size, among others. That in the

survey, Respondent No. had provided the name of location of survey to

be Sariput Nagar and not Prajapur Pada. It is submitted that Respondent

No. had deliberately overlooked and disregarded ‘Prajapur Pada’ and

started using the name of the location as ‘Sariput Nagar’ to treat tribal

members of Prajapur Pada as ‘slum dwellers’. Further, the survey carried

out was erroneous in asmuch as atleast 5 tribal members including the

Petitioners herein are listed under the ‘General’ category instead of

‘Scheduled Tribe’ at Sr. No. 1, 2, 3, 9 and 28. Annexed and marked hereto

as EXHIBIT – H is the copy of baseline survey undertaken by MMRDA.

21.That for the first time on 29.10.2014, a notice was issued by Respondent

No. 9 to Petitioner Nos. 1 and 3 treating the tribal lands and the house of

the Petitioners as ‘slums’ and informing them that for the implementation

of Metro Corridor 3, Petitioner’s lands and house were to be demolished.

The notice further stated that the rehabilitation of the Petitioner shall take

place according to the MUTP’s R&R policy. Similar notices were issued

to Petitioner Nos. . Annexed and marked hereto as EXHIBIT – I are

said notices issued by Respondent No. MMRCL.

22.That pursuant to issuance of such notices, a representation dated

08.01.2015 came to be issued on behalf of Petitioner Nos. 1 and 3 to

Respondent No. 9 stating that Petitioners were in possession of the lands

for cultivation of rice crops/vegetables at Prajapur Pada, much before the

formation of Aarey Colony and any rehabilitation and redevelopment

must be undertaken only after an agreement with Petitioners and in terms

 of MUTP’s R & R policy. Annexed and marked hereto as EXHIBIT – J

is the said representation dated 08.01.2015.

23.That in 2015, an Original Application, being O.A. No. 34 of 2015, came

to be filed before the Hon’ble National Green Tribunal, Western Zone

Bench inter alia seeking for preventing destruction of Aarey Colony

which is rich in bio-diversity, is a deemed forest and to further seek

directions to ensure non-forest activities inside the Aarey Colony are not

carried out. The Application further seeks identification and declaration of

Aarey Colony as ‘Forests’. That in view of the entire Aarey Colony being

an Ecologically Sensitive Zone of Sanjay Gandhi National Park, the

Hon’ble NGT passed orders dated 20.07.2015 and 19.08.2015 directing

all state authorities to maintain status quo in Aarey Colony. Annexed and

marked hereto as EXHIBIT – K are orders dated 20.07.2015 and

19.08.2015.

24.That a Public Interest Litigation, being PIL No. 22 of 2012, pertaining to

identify the lands in Aarey Colony originally in possession of tribals of

and leased/transferred to government authorities, declaring the entire

tribal padas of Aarey Colony as Gaothan and to not dispossess the tribals

cultivating the land in and around Aarey Colony is pending before this

Hon’ble Court. In view of a Slum Rehabilitation Scheme planned in

Aarey Colony, this Hon’ble Court passed the following order dated

18.03.2016:

“1. ………………………….
 6. Needless to state that in view of the interim orders passed

by this Court as well as the National Green Tribunal, a

slum
rehabilitation scheme cannot be implemented in the Aarey Colony area.

We, therefore, clarify that though the Deputy Collector may proceed

with the biometric survey, action of eviction shall not be taken against

the tribals who are occupying 27 identified Aadivasi Padas in Aarey

Milk Colony without seeking leave of the Court. “

Annexed and marked hereto as EXHIBIT – is the copy of the order dated

18.03.2016 in PIL No. 22 of 2014.

25.That Petitioners herein received no notice or communication whatsoever

from Respondent Nos. 8 & 9 from 2015 onwards.

26.That only on 12.01.2017, a public notice came to be issued by Respondent

No. 9, which once again referred to the tribal houses of Prajapur Pada as

‘slums’ in ‘Sariput Nagar’, directing that huts in the area will soon be

demolished and residents are required to make submit photo copies of all

documents for the lottery of houses that is scheduled to take place on

24.01.2017. No reference to the IPDP under the MUTP’s R & R Policy

has been made by way of such public notice.

27.It is submitted that on 05.05.2017 (Friday), a common demolition notice

for the entire Prajapur Pada, which once again referred to the tribal houses

of Prajapur Pada as ‘slums’ in ‘Sariput Nagar’, came to be issued by way

of a public notice by Respondent No. 9 directing that demolition will take

place on 08.05.2017 (Monday) at 10 A.M. That though the notice stated

 that the Project Affected People may prefer an appeal to the Zonal

Complain Redressal Committee, it is highly irrational and arbitrary for

Respondent No. 9 to have provided only 2 days, being Saturday and

Sunday, for any appeal. Annexed and marked hereto as EXHIBIT – L is

the demolition notice dated 05.05.2017. That the said demolition notice

further states that survey of 60 other PAPs including Petitioner Nos. 4 and

5 was being carried out as part of Phase 2 of demolition and more

information such as Basic Social Economical Survey List (BSESL) shall

be published separately. Without prejudice to the above contention, it is

reiterated that no Indigenous People Development Plan as mandatorily

required under the MUTP’s R & R policy was prepared by Respondent

Nos. 8 and 9 for the said metro project.

28.That on 08.05.2017, demolition of tribal huts, destruction of fertile lands

used for cultivation and cutting of full grown trees in Prajapur

pada/hamlet was undertaken by Respondent No. 9 through its demolition

squad. That on this day, 61 members of the tribal community came to be

forcefully evicted.

29.It is submitted that tribal lands and houses of Petitioner Nos. 4 and 5 are

not yet demolished as they fall under Phase-2 against whom only

allotment letters are issued. The Public notice for demolition under Phase-

2 is yet to be issued to Petitioner Nos. 4 and 5. In view of Respondent No.

9’s plan of expanding into more areas of Prajapur Pada in Aarey Colony

by way of demolishing Phase-2 of Prajapur Pada and with no Indigenous

Peoples Development Plan (IPDP) prepared by Respondent Nos. 8 and 9

 as required under Respondent No. 10’s MUTP R & R Policy, the present

Writ Petition is being filed on behalf of Petitioner Nos. 4 and 5.

GROUNDS